European courts consider whether obesity can be classed as a disability

A recent discrimination case, heard in the Danish District Court, has led to the possibility that obesity could be classed as a ‘disability’.

The claimant, Mr Kaltoft, worked as a child-minder for 15 years, until he was dismissed in November 2010. Mr Kaltoft who, according to data from the World Health Association, is considered to be severely obese, argued that he had been dismissed because of his obesity. The question of whether obesity could fall within the scope of the Equal Treatment Framework Directive was put to the European Courts of Justice for its comments.

The Equality Act 2010 provides that a person has a disability for discrimination purposes if they have a "physical or mental impairment and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".

Advocate General Jaaskinen has suggested that not every obese person would fall within the definition of disability but could very well do so; it must represent a limitation that hinders a person's full and effective participation in professional life on an equal basis with other workers. As such, he commented that whether obesity would fall within the definition of disability would depend on the severity of the condition and, that only in the more severe cases, would it likely create limitations in terms of mobility and endurance for the purpose of the Directive. It was added that it would not matter if the obesity was self-inflicted due to excessive food and that it should apply regardless of whether the obesity was due to excessive food intake or due to a metabolic or psychological problem.

Whilst we await a formal decision from the European Court of Justice, it is likely that this will follow the opinion of the Advocate General. Whereas previously, an employer could seek to subject an obese employee to less favourable treatment (or even dismiss them), it is possible that such behaviour will soon be considered to be an offence.

Have you come across a case in your working environment where you witnessed someone being treated unfairly because of their weight? I would be interested to hear your feedback on how this impacted the person (employee) and whether they took any formal steps to make a claim against their employer.

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